United States District Court, N.D. California
UNITED STATES ex rel. KARLA ABEA, Relator,
DEBBIE ODIYE, GODWIN ODIYE and DOES 1 through 50, inclusive, Defendants.
ORDER GRANTING IN PART MOTION FOR LEAVE TO AMEND AND
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE.
claim for relief, the plaintiff relator in Section 8 housing
alleges that defendant landlords have violated the Federal
False Claims Act and various state and local laws. Although a
case management order deadline ordered that requests for
leave to amend be made by June 28, 2019 - five months ago -
plaintiff now requests for leave to amend the complaint. For
the reasons stated below, this order holds that
plaintiff's requests are Granted in part
and Denied in part. The hearing set for
November 21, 2019, is Vacated.
relator rents a San Francisco residential unit from
defendant, residing in the “upper unit” of a
single-family home which has been converted into two units.
The units share one electricity, gas, and water meter.
Plaintiff's tenancy was subsidized through the Section 8
Housing Choice Voucher Program. The program is administered
by the San Francisco Housing Authority, which receives
funding from the United Stated Department of Housing and
Urban Development. In order to be eligible for Section 8
tenant-based housing assistance payments, landlords are
required to enter into an agreement with SFHA entitled
Housing Assistance Payment Contract, referred to as a HAP
Contract. Under the HAP Contract, a housing subsidy is paid
directly to the landlord on behalf of the participating
family, based on SFHA's calculation of “reasonable
rent.” The family then pays the difference between the
actual rent charged by the landlord and the government
subsidy. 24 C.F.R. § 982.1(a). Defendant received
payments from SFHA through this program by reason of
plaintiff's Section 8 tenancy (First Amd. Compl.
¶¶ 8, 9, 16, 18-20).
plaintiff's tenancy, however, plaintiff and defendant
have clashed. This conflict culminated in October 2018, when
plaintiff brought the present action against defendant.
Plaintiff asserts twelve claims against defendant, including
violations of the False Claims Act, 31 U.S.C. § 3729
et seq., and various other violations of state and
February 2019, defendant filed a motion to dismiss (Dkt. No.
15). In March, after full briefing on the motion to dismiss
but before oral argument or ruling, plaintiff filed a first
amended complaint. The undersigned denied the motion to
dismiss as moot (Dkt. Nos. 21, 22, 24). Later that month,
defendant filed a motion to dismiss several claims in the
first amended complaint (Dkt. No. 29). The undersigned issued
both an order denying the motion to dismiss and an order
scheduling case management. The scheduling order provided
that leave to amend pleadings must be sought by June 28,
2019, non-expert discovery must be completed by January 2020,
and the trial date to be set for April 2020 (Dkt. Nos. 37,
40). The parties engaged in mediation in September.
the deadline to amend having long since passed, plaintiff now
moves to amend the pleadings. Plaintiff alleges that this
delayed amendment is necessary to (1) amend existing False
Claims Act claims to conform to allegedly new evidence, (2)
allege a new claim based on new evidence, and (3) dismiss a
claim barred by the statute of limitations. Defendant in turn
makes a motion to strike and a motion for sanctions (Dkt.
Nos. 50-52). For the reasons stated below, this order holds
that plaintiff's request to dismiss the claim barred by
the statutes of limitations is Granted. All
other requests are Denied.
to amend a complaint shall be freely given when justice so
requires under FRCP 15(a). This standard is applied
liberally. FRCP 15(a) does not apply, however, when a
district court has established a deadline for amended
pleadings under FRCP 16(b). Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).
Once a scheduling order has been entered, the liberal policy
favoring amendments no longer applies. Subsequent amendments
are not allowed without a request to first modify the
scheduling order. Id. at 608-09. At that point, FRCP
16(b)(4) provides that leave to amend following entry of such
a case management order may be granted only upon a showing of
“good cause” for the delay and with the
judge's consent. This good cause standard
“primarily considers the diligence of the party seeking
the amendment.” Coleman v. Quaker Oats, 232
F.3d 1271, 1294 (9th Cir. 2000).
initial matter, plaintiff failed to first request to modify
the scheduling order. She merely moved to amend her
complaint. Her motion makes no reference to the passed June
deadline. Our court of appeals has generally declined to
consider motions to amend the complaint as motions to amend
the scheduling order. Johnson, 975 F.2d at 608-09.
Even if this order were to treat plaintiff's motion as
such, the result would not change. As will be shown below,
plaintiff cannot meet the good cause standard under FRCP
Motion to Amend Facts Relating to False Claims Act
first seeks leave to amend so as to square the
complaint's description of the HAP Contract with new
factual developments. Neither party possesses the subject HAP
Contract, so its terms cannot be easily discerned. Instead,
plaintiff describes the contents of the HAP Contract in the
first amended complaint. As relevant here, it alleges: (1)
defendant entered into a HAP Contract with the SFHA; (2) the
HAP Contract was not signed; (3) defendant entered into an
oral contract with the United States by which defendant
understood she would need to comply with the terms of the HAP
Contract; and (4) the HAP Contract provided that defendant
would pay for utilities.
argues that two recent developments require this description
be adjusted. First, in August 2019 defendant deposed
an SFHA employee who explained that “the HAP Contract
must have been in writing and signed by [d]efendant
in order for any subsidy payments to be issued” (Hain
Decl. ¶ 3, emphasis added). Second, SFHA
produced the complete file on plaintiff's tenancy at the
subject residence, and it revealed conflicting indications
over who the HAP Contract listed as responsible for utility
payments. Thus, plaintiff argues, “it is no longer
appropriate for the complaint to allege that the HAP Contract
was verbal” or that it “must have provided that
defendant would pay all utilities” (Br. at 13).